In Australia, de facto relationships are very common and are becoming more so.
The Australian Bureau of Statistics has released fresh data on marriage and divorce rates, the average age at which people marry, and changes in the nature of relationships that lead to marriage in Australia.
According to the Australian Bureau of Statistics, compared to numbers from 20 years ago, Australians are marrying later, with a 16 percent rise in the number of couples who choose to live together before getting married, according to the ABS.
As a result, more Australians are living in de facto partnerships than at any other time in history.
A de facto relationship is a relationship in which a pair cohabitate on a regular basis in their own home. It’s important to note that there is no variation in this term between the states of Queensland, New South Wales, Victoria, the Northern Territory, the Australian Capital Territory, South Australia, Western Australia, Tasmania, and Queensland.
Moreover, de facto relationships are defined in Australian law to include couples of the same sex or opposite sex who are in a de facto relationship. A de facto relationship is not deemed a de facto relationship in circumstances where a couple are married or are related by blood or bloodline. However, even if a person is officially married, they might be regarded to be in a de facto relationship with someone else who is not their spouse under certain circumstances. For example, a person might be married, but having an extra-marital affair and that relationship may be considered legally as a de facto one.
Unmarried couples who live together for more than two years without divorcing are considered to be in a de facto relationship with one other. Because of this, the period of time to be taken into consideration is two years. Exceptions to this rule are made, however, in the case of children or considerable contributions to the joint property in question.
De facto relationships are governed under the Family Law Act 1975, which was passed in 1975. This implies that the Family Law Act 1975 governs your rights in relation to property settlement, child support, and divorce and separation. In Western Australia, however, de facto relationships are governed under the Family Law Act 1997 (WA), which is a state statute.
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Defining the term “De Facto Relationship.”
In light of the fact that the meaning of de facto varies depending on the specific circumstances of a relationship, the law has developed a set of considerations to evaluate whether a couple is (or was) de facto or if the situation is less serious. The following are some of the considerations that the law takes into account when evaluating whether a couple is in a de facto relationship:
- How long the pair have been in their relationship; how long they have been together.
- Whether or not the connection was sexual in nature; whether or not the partnership was financially dependent; the degree to which the parties were committed to a shared existence;
- Whether or not the partnership is legally recognized in an Australian state or territory;
- Ownership and usage of real estate;
- Children’s welfare and assistance.
It is important to understand that a de facto relationship does not have a single meaning in and of itself, but rather multiple factors are considered in such a determination. Each case turns on its own individual merits, with the unique circumstances of the relationship taken into consideration by the court. You can also be in more than one de facto relationship at the same time. The Family Law Act 1975 expressly recognizes that a person can be in a de facto relationship regardless of whether or not they are in another de facto relationship at the time of their separation. This means that a de facto relationship does not have to be mutually exclusive in order to exist.
In light of the imprecise nature of assessing de facto status, those in such a relationship may disagree as to whether the connection was de facto or not, and how long the relationship existed, following its dissolution of it. In fact, it’s very likely that you’ve been engaging in a de facto relationship without ever realizing it or giving it any thought.
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The following types of evidence can be given to a court if you are attempting to establish that your connection was de facto:
- SMS messages and emails were exchanged between the two parties.
- Opinions from family and friends on the relationship
- Bank statements are a type of financial statement
- Photos of the pair have been shared on social media.
- Whether a partner has been classified as a spouse on tax returns is an important consideration.
In the event that you are ending a relationship and are unclear if the relationship was de facto, or if you are attempting to establish a financial claim against an ex-partner and must prove that the relationship was de facto, it is advisable to get professional legal advice from our team at Mediations Australia. We have family lawyers and mediators across Australia who can offer you free, initial advice.
Obtaining legal recognition for a De Facto Relationship
You can register a de facto relationship with your state’s Registry of Births, Deaths, and Marriages if you live in one of the states or territories that allow it. This will give you a certificate that may be used to prove the existence of your de facto relationship and the length of time you have spent together.
Even if you haven’t lived together for two years, a legally recognized partnership or civil union may provide you the right to divide your property in the event of divorce.
When a De Facto Partnership has come to an end.
The majority of de facto partnerships come to an end peacefully. Occasionally, however, there are disagreements over the distribution of property or the custody of children. Upon the dissolution of a de facto relationship, there are three options for determining how property should be divided:
- By agreement without the participation of the court;
- by an agreement formalized by the court through the filing of an application for Consent Orders;
- or through the filing of an application with the court for orders.
The courts have the authority to order the partition of any property that you and your spouse or partner own jointly or separately. They can also order a division of any superannuation or that one party pay spousal support to the other party in certain circumstances.
The net asset pool will consist of all assets acquired prior to, during, and after the separation process. It makes no difference whether the property was held in joint or individual ownership. During the property settlement process, the court considers the sorts of contributions – financial and nonfinancial – made by each party, as well as their future requirements.
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The right to get a judicial order
To address difficulties involving children or property in Western Australia after being in a de facto relationship, you must file an application with the Western Australian Family Court (Family Court of Western Australia).
In all other Australian states and territories, you can file an application with either the Family Court or the Federal Circuit Court, according to your circumstances. This implies that your family law issues will be resolved in the same way that they would be for a married couple going through a divorce.
Before submitting an application to the courts, you must first determine whether or not you fulfill the concept of de facto. In other words, you should be able to demonstrate some of the following characteristics:
- It is necessary that your relationship lasted for at least two years;
- or you have a child or children from the relationship;
- or you have made significant financial or non-financial contributions to the other person’s property;
- The failure to split property would result in substantial injustice being done to you in your role as a housewife and/or mother/father;
- The de facto partnership was officially recognized by the government of a state or territory.
The courts will not issue an order unless they believe it is reasonable and equitable to do so under the circumstances.
It is customary to file an application with the Court unless the subject includes complicated family law concerns such as:
- The international kidnapping or relocation of a child or children; s
- specialized medical procedures for a child or children;
- contravention of parenting orders;
- serious allegations of sexual or physical abuse of a child or children;
- serious allegations of controlling family violence; or other complex legal questions
If you have separated from your de facto partner within two years after the split, you must file a financial order in every state and territory. In any other case, you would be required to get authorization from the court before filing your application.
The Death of a De Facto Partner
The death of a de facto partner is a tragic event.
If you are considered to be in a relationship at the time of your partner’s death, you have the same legal rights as if you were married. This encompasses rights and entitlements in relation to the following topics and issues:
- A portion of an estate if there is no Will (i.e., your spouse has died ‘intestate,’ meaning without a will);
- The right to contest the Will if it does not provide for all of your needs;
- If your spouse passes away while you are at work, you may be entitled to compensation under workers compensation legislation.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Sydney, Perth, Adelaide, Melbourne, and all other locations in Australia. We also do international family law matters.